The first judge who engaged Jensen brings up justification of cost, which to me refers to evaluating the case under rational basis. The judge then says "You're arguing presumably, that there is a discrepancy between this fee and the nominal fees that are charged elsewhere, which violates Equal Protection, also making a Second Amendment point that would heighten the level of scrutiny"

I disagree. I don't recall which circuit was which, but at least two of the three assumed without deciding that the right extended outside the home. (Woolard and Drake) They instead tackled the issue as to what was the permissible scope of restrictions on the right to carry a concealed weapon, i.e., the propriety of "good cause" for issuance of a license. Moore v. Madigan had no such issue, as all concealed carry was banned. Secondarily, each applied some variant of "intermediate scrutiny" (or at least what they called "intermediate scrutiny"), and again Moore had no such issue because Illinois failed to adduce any evidence establishing even a rational basis for its law.

You've made this statement, at least twice now in this thread. Let's set the facts straight, shall we?

The Kachalsky (CA2) and Woollard (CA4) courts assumed that there was a right to carry. But they also assumed that this right lay outside the core of the right. Based on those assumptions, only a very weak form of Intermediate Scrutiny was applied. O'Scannlain called it what it actually was; Interest Balancing indistinguishable from Rational Basis. In order to use one of the traditional forms of scrutiny, the courts have to do more than just assume something is true or false. It must make that determination. These two courts did nothing of the sort.

In Moore, the question was not one of concealed carry. The issue at hand was that no carry at all, was allowed. Posner did not mandate what form of carry that Illinois had to allow. Only that they had to allow some form of carry. In order to reach that conclusion, the CA7 found that the core of the right was a right to self defense. Judge Posner then expressed the opinion that the right was almost as acute outside the home as it was inside the home. Since all forms of carry were denied, the plaintiffs had been and were still being injured by being denied their fundamental right. Since IL did not/could not proffer a compelling reason to deny the right, their law was struck down. This was real heightened scrutiny.

Under the Moore reasoning, the CA2 and CA4 were in error, because they never reached to a determination that the right actually existed. They made an assumption and proceeded from that point. Posner called out those circuit panels for shoddy work.

At this point, there was a technical split between CA7 and CA2/CA4. The split was not "weak" as you stated earlier.

The Drake court, in contrast, never even assumed that a right to carry in public existed. They started and ended with deference to legislative actions. Again, this is Rational Basis Scrutiny, regardless of dressing it in Intermediate clothing.

With the above as a backdrop, we now come to the Peruta case.

Judge O'Scannlain (CA9) went even further than Judge Posner. After cataloging the cases and distinguishing which cases were helpful and which were not, the Judge went into the historical meaning of the right as viewed and practiced by those at the time of the enactment of the amendment. Judge O'Scannlain, like Judge Posner, concluded that the core right was self defense. Since the only manner in which CA allowed the right was through their CC permitting system, then that part of the system that allowed for "good cause" must also include, as a reason, self defense. Since the policy of San Diego was to not accept self defense as "good cause," that policy was unconstitutional. O'Scannlain went further and declared that this policy was unconstitutional under any form of heightened scrutiny. Therefore no determination of the proper form of scrutiny was ever reached.

Along the way to making this determination, O'Scannlain repudiated his three sister circuits in the shoddy manner in which they arrived at their opinions.

There is now, not just a technical split, but a very deep split between what citizens are allowed, as it regards the exercise of a fundamental right and depends upon which judicial jurisdiction they find themselves living in. This is not a situation in which the Supreme Court can allow to exist for much longer.

Since my thinking, above, has been and is in accord with the thinking of others, who are much more qualified to express such legal opinions than I, I see no reason to change this thinking.

I'm still waiting for the pivotal case to get us to the most fundamental question: How can a government agency require a license (and a fee) for the exercise of a constitutional right?

How far would any state get if they tried to enact a law requiring a license (and a fee) to publish a book or magazine, or a permit to attend church?

Well even the Peruta decision here didn't go so far as to say Concealed Carry was a right. They just said some form of carry was a right. My state is both Shall Issue and OC. Because OC is legal, with the Peruta reasoning, I'll likely never be able to get a free Concealed Pistol License.

I also wonder if the fee question isn't a 400 pound gorilla hiding under a rock. If a fee for a carry permit of whatever name is unconstitutional when open carry is banned, that's the crack in the armor for challenging the NICS fee if there is one. (Is there by the way? I'm not an FFL but I've heard they have a fee to pay for access to the NICS check that's passed on to customers through firearms prices of FFL transfer fees).

It also opens questions (for me anyway) on the legality of charging a fee for a state issued identification card given all the rights that all but require one. For example, when you don't have one how long may law enforcement seize (4A) you to verify your identity? ID is apparently required for the FFL/4473 process as I found out when mine was expired. When/If voter ID is passed, we're now on another right. Very few methods of interstate travel are possible without ID. A fee to get a US passport would create the same question. The US recognizes a freedom of movement inside the US (and possibly internationally) in the Privileges and Immunities clause of the Constitution, and probably internationally when they adopted the Universal Declaration of Human Rights.

Which doesn't mean these services will be free, merely that like the poll tax, when/if these charges are struck down, instead of people using the service paying a fee, we're all just going to pay another X% (with X probably being a very small number to the right of the decimal point) in sales and income taxes. And while that's not necessarily bad, it seems like the lawyers could be playing pinball with the courts over tax revenue for a while.

Quote:

It's a split the size of a nuked grand canyon.

Especially when you realize the size of the courts involved. The 9th is absolutely gigantic. Even though it's 2 courts vs 3 courts, the number of states involved are still nearly equal.

I would agree the split between CA7 and 2-4 was tenuous-the reasoning behind the opinions was indeed all over the map(even within CA2-4). We now have 2 almost identical statutes with CA9 going one way and CA2-4 going another, with CA7's rationale supported by CA9's Peruta opinion.

The question still remains what kind of split exactly will it take for SCOTUS to bite?

"Yes, I know you do. But you're disagreeing with Volokh, Kopel and Denniston. I know who they are. I know their qualifications.
I don't know who you are, and I have no idea what your qualifications might be.
So I'll side with Volokh, Kopel and Denniston. I have no reason to credit your opinion over their opinions. "

You can side with whomever you want, but dismissing an opinion without discussion of the merits is a meritless ad hominem attack. I have stated the basis for my opinion, and if you want to refute it, go ahead, but otherwise keep your "opinions" as whom you chose to believe based on nothing more than that they are prominent to yourself. The law is not based on the stature of the men (and women) who argue it, but the strength of their logic and argument, something that is not confined to the "elite." My "qualifications" are entirely irrelevant, which you, as an attorney, should most certainly know. That said, I am a California licensed attorney with 26 years experience, a Martindale rating, and almost 100 appeals under my belt.

The question still remains what kind of split exactly will it take for SCOTUS to bite?

I'm betting SCOTUS will bite soon, but as I read more I'm less and less convinced that they will take it up with this case. I think they might not go for an en banc even because of outside pressures against them doing so. I'm pretty sure that the anti-gun organizations realize that if this case is heard with the current SCOTUS, may-issue will likely go away. That being said, I don't have nearly the knowledge base that some of the other posters here seem to have.

"You've made this statement, at least twice now in this thread. Let's set the facts straight, shall we?"

I did get the facts straight, and if you read what I wrote and what you wrote, you will find that we actually agree with each other. What I called a "weak" split you called a "technical" split--which to my mind is exactly the same thing. In any event, is was indisputably not enough of a split to warrant the Supreme Court to grant cert in any of the cases presented to it since then. I assume that this had a lot to do with the fact that Moore was not appealed, and that Moore did not even mention the standard of review much less address the question (which is again a point on which you and I agree).

The cases you reviewed that assumed that there was a right did say it was not a "core" right, but I think you misconstrue what they meant; they concluded that there WAS a right, but that it was not entitled to the same level of protection outside the home as inside the home, applying some bizarre 'sliding scale" "intermediate scrutiny" analysis. Their analysis, which you and I agree is faulty, held that the core was protection of hearth and home (misapplying some dicta in Heller), and that as one moved away from the home, the degree of deference to the right waned. Finally, you agree with me that Moore, unlike the three cases from 2,3, and 4, did not address concealed carry--which is what I said, and which is a particularly important basis for distinguishing it.

We also agree that O'Scanlain called them out on their nonsense, and that after Peruta, assuming it sticks, there is a very real split, not just, in your words, a "technical" one. After Peruta, I think that Supreme Court review is not just inevitable, but in the offing. Of course, a discussion of Peruta has nothing to do with Moore or the "strength" of the split between the 7th and the 2, 3, 4, since again you and I agree that the issue appears ripe for Supreme court review.

...but dismissing an opinion without discussion of the merits is a meritless ad hominem attack...

I'm discounting your opinion because (1) I've concluded that it's wrong on its merits as I previously, and Al Norris recently, described; and (2) it conflicts with the opinions of persons I know to be eminent lawyers and legal scholars.

__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper

The numbers game of population statistics isn't particularly compelling for these reasons. Moore was limited to the State of Illinois, the only state in the nation that banned concealed carry. In the Ninth, only California and Hawaii have "may issue" laws, the rest of the states being shall issue and/or unlicensed carry. Further, there is now pending another case, argued the same day as Peruta, concerning Hawaii's law; therefore, other than its legal theoretical basis, Peruta will have no impact except on other "may issue" jurisdictions, of which there are ever fewer. (Actually, I've lost track of that statistic. Most are on the eastern seaboard.) So a better number would be the population of those states that have "may issue" licensing schemes.

"I'm discounting your opinion because (1) I've concluded that it's wrong on its merits as I previously, and Al Norris recently, described; and (2) it conflicts with the opinions of persons I know to be eminent lawyers and legal scholars."

More meaningless verbiage that tells us nothing of your analysis. As I have demonstrated, the only thing on which we appear to disagree is whether the decision in Moore established a split between the 7th and the 2, 3, and 4th Circuits. 2,3, and 4 say that the right exists outside the home but is subject to regulation based on "good cause" in the public interest. Moore says that the right exists outside the home and cannot be banned, never addressing whether a may issue or shall issue scheme is mandated by the Second Amendment. Nothing in the decision compelled Illinois to adopt a "shall issue" scheme. Therefor there is no direct conflict, just a philosophical difference in the manner in which the issue is analyzed. That to date has not been enough to compel the Supreme court to act. Hardly surprising.

Peruta creates a real split because it says that the right exists outside the home AND is not subject to a regulation based on "good cause." That is in fact a direct attack on the holdings in Kachalsky, Drake, and Woolard, something Moore is not.

The linked article by Voloch says only that he is reviewing the decision, saying nothing about a "split." The second article says there is a split in a single sentence with no context and no analysis. and the third, but ___ says: "Only one other federal appeals court — the Seventh Circuit — has ruled that the right to have a gun for personal use continues when one leaves home, but its ruling on the point was notably more narrow than the new Ninth Circuit decision. Other appeals courts have refused to assure protection for carrying a gun beyond the home — a split that might enhance the prospects that the Supreme Court would ultimately settle the question." All Frank says, in this entire thread, is "I agree with those guys because they are famous and you aren't." I read the entire thread to be sure. So please, Frank, tell me where you demonstrated the flaw in my discussion, as I can find no evidence of it.

...the only thing on which we appear to disagree is whether the decision in Moore established a split between the 7th and the 2, 3, and 4th Circuits...

I guess we'll have to see. If you're correct, and if the Ninth Circuit declines to hear Perutaen banc we just might see a lot of pressure being put on San Diego not to take it up. Peruta in the Supreme Court could be seen a posing a real risk to the remaining "may issue" States.

If Peruta goes up we'll have the clearest sort of split. And Judge O'Scannlain's opinion drew so heavily on Heller that I suspect the prospect getting to address the case will be enticing to at least four of the Heller five.

__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper

If San Diego does not take Peruta up on cert., there is a good chance that the court will take Drake, which is on calendar for tomorrow, because as I've said repeatedly but no one seems to be listening, Peruta creates a split that merits Supreme court review--and the Court doesn't need to take Peruta up to address it. All I have been saying about Moore is that it does not create a split that needs to be resolved, an opinion supported by the inaction of the Supreme Court to date. And as I've said in other contexts, I believe the Supreme Curt has been waiting for the Ninth to issue an opinion before taking another case--which makes sense in that the Ninth is the only circuit besides 2, 3, and 4 that has a state with a "may issue" law. With Peruta on the books (assuming no reversal on en banc), the time has arrived.

As I have demonstrated, the only thing on which we appear to disagree is whether the decision in Moore established a split between the 7th and the 2, 3, and 4th Circuits. 2,3, and 4 say that the right exists outside the home but is subject to regulation based on "good cause" in the public interest. Moore says that the right exists outside the home and cannot be banned, never addressing whether a may issue or shall issue scheme is mandated by the Second Amendment. Nothing in the decision compelled Illinois to adopt a "shall issue" scheme. Therefor there is no direct conflict, just a philosophical difference in the manner in which the issue is analyzed.

Your analysis of a circuit split focuses on the specifics of concealed carry licensing. Others focus on a circuit split with regard to the scope of the Second Amendment. The 2CA, 3CA, and 4CA have largely placed the 2A right to self-defense under house arrest, while the 7CA and 9CA recognize that "to bear" in the 2A extends the right beyond the home.

Until the Supreme Court takes up a case, we will not know whether the Court prefers to address the bundle of related issues within a broader or narrower context.

By the way, just a nit. Lane, BATF, and McCraw are up today in the Friday conference, not Drake. We will probably get an order on those cases on Monday. I have my fingers crossed but I am not betting the rent money on it. The Opp in Drake is not due until March 14 which means the case will probably not go to Friday conference until April 18. A petition for rehearing in Peruta is due Feb. 27, unless extended, which the 9th circuit will do for the asking, typically. A petition for rehearing will act to stay the mandate, so there is nothing much "final" yet about Peruta.

On the development of a split, there is no doubt that Peruta really does establish a split between the circuits on the constitutionality of "good cause" laws, a category that includes NY, NJ and MD, as well as SD's construction of the California good cause law. And it is quite correct that Moore did not involve a "good cause" law, as the Illinois statute was almost a complete ban. So Peruta goes further than Moore. It is also quite correct the both Moore and Peruta recognize that the core right is "self defense" -- not merely self defense in the home. On that legal point there is indeed a 3/2 split. But I have been doing SCT stuff for a long time (almost 40 years). The Court takes cases when it wants to, split or not. Not all splits are created equally. I had a case in which there was a 3/4 split that lasted 15 years before the court took cert on that very issue. What makes Peruta uniquely cert-worthy is that the 9th Circuit struck down a state (municipal) ordinance as unconstitutional, just as the DC. Circuit in Heller (then Parker), struck down the D.C. statute. Moore was equally cert-worthy, but Illinois declined to seek cert. Peruta has now joined Moore in this respect. It was easy to deny cert in the NY and MD cases, as the status quo was maintained. Drake may meet a similar fate for the same reason. The big hurdle now is for Peruta to get past en banc.

In my mind the worst outcome for those of us in Ca. at the moment is that San Diego does not appeal. The 9th does not take this up en banc and no cert. requested of the SCOTUS. This based off of the back and forth of the posters who obstensibly are members of the bar.

This scenario begs the question: Assuming that no en banc or cert. how does this affect the "May Issue" scheme in Ca. as a whole? As I live in a county which is as or more onerous in their "Good Cause" requirement than San Diego. would we (those of us in restrictive counties) have to mount a county by county court assault on their "Good Cause" requirements until we could compel the state legislature to codify it?

All the while we are left with the SCOTUS waiting to decide when to take up which case that would finally put one important question to rest: Do we have r right to bear arms for Self Defense out side of the home.

In my mind the worst outcome for those of us in Ca. at the moment is that San Diego does not appeal. The 9th does not take this up en banc and no cert. requested of the SCOTUS. ...

I don't think so.

Quote:

Originally Posted by SHR970

...This scenario begs the question: Assuming that no en banc or cert. how does this affect the "May Issue" scheme in Ca. as a whole...

In that case we have a final Ninth Circuit decision that a personal desire for self defense would need to be considered good cause. Basically Persuta removes the discretion to decide what is or is not good cause. That takes California pretty much to "shall issue."

We'd still have a something of a hodgepodge of county-by-county requirements related to training, insurance, psychological evaluations, etc., to deal with. Some of these will be vulnerable to attack as exceeding requirements permissible under state law as well as on constitutional grounds.

But discretionary good cause has been taken off the table. Furthermore, Judge O'Scannlain's decision is clear and unequivocal that the rights described in the Second Amendment includes a right for ordinary people to bear arms outside the home for personal defense.

__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper

What makes Peruta uniquely cert-worthy is that the 9th Circuit struck down a state (municipal) ordinance as unconstitutional, just as the DC. Circuit in Heller (then Parker), struck down the D.C. statute.

My understanding is/was that the court struck the policy of the San Diego Sheriff to interpret self defense as insufficient cause. I didn't realize they struck the statute. What am I missing?

correct, the court didn't strike down the California statute, which authorizes the issuance of a permit for "good cause." What they did strike down was SD's official policy that good cause did NOT include self defense. Other Cal. counties consider good cause to include self defense. So it was SD's official construction of good cause that was at issue. Hence my reference to "municipal" in the earlier post. The point is that the court struck down a municipal ordinance. While certainly less weighty than a state statute, ala Moore, it will suffice for purposes of cert.

BTW, the best of all worlds for Calif. residents is for SD to forgo en banc and forgo cert. Peruta then becomes binding precedent as to the 9th Circuit, including all of California. The California counties will have to come into line, or face suits forcing them to come into line. Not being stupid, they will comply.

Judge O'Scannlain's decision is clear and unequivocal that the rights described in the Second Amendment includes a right for ordinary people to bear arms outside the home for personal defense.

However, the permitting system in Ca. as you may be aware is for FIREARMS. CCW w/o a permit for a firearm is a misdemeanor the first time around under current law. Couldn't O'Scannlain's decision also be applied to other arms / weapons such as knives, swords etc. which are currently either a misdemeanor or a felony to carry concealed and to which at face value there is not permitting process in place? Ref. CPC 26150-26225. for CCW and various CPC's in the 17500-26405 range.

Further, even under lesser levels of scrutiny, doesn't this open the door pretty wide to have various "prohibited weapons" statutes stricken as historically (O'Scannlain seriously went there in deference to history) there were generally no prohibitions on the types of weapons one could carry until fairly contemporary times?

Last edited by SHR970; February 21, 2014 at 01:32 PM.
Reason: edited for clarification

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